[Federal Register Volume 66, Number 221 (Thursday, November 15, 2001)]
[Notices]
[Pages 57419-57420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28642]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-428-825]


Stainless Steel Sheet and Strip in Coils From Germany: Notice of 
Court Decision and Suspension of Liquidation

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Court Decision and Suspension of Liquidation.

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EFFECTIVE DATE: November 15, 2001.
SUMMARY: On October 19, 2001, the Court of International Trade (the 
Court) affirmed the redetermination made by the Department of Commerce 
(the Department) pursuant to the Court's remand of the final 
determination of sales at less than fair value of stainless steel sheet 
and strip in coils (stainless sheet) from Germany. See Krupp Thyssen 
Nirosta GmbH and Krupp Hoesch Steel Products, Inc. v. United States, 
Court No. 99-08-0050, Slip Op. 01-123 (CIT October 19, 2001). In the 
redetermination the Department (i) used neutral facts available for the 
purpose of calculating U.S. Reseller's margin rate and any other 
calculation predicated on U.S. Reseller's cost and sales data\1\; and, 
(ii) calculated facts available for the reseller in a way that enabled 
the facts available rate and the sales prices to which it is applied to 
be adjusted to be net of movement and selling expenses. The results of 
the remand redetermination are shown below. Consistent with the 
decision of the U.S. Court of Appeals for the Federal Circuit in Timken 
Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the 
Department will continue to order the suspension of liquidation of the 
subject merchandise until there is a ``conclusive'' decision in this 
case.
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    \1\ ``U.S. Reseller'' refers to an affiliate of respondent Krupp 
Thyssen Nirosta, GmbH (KTN). The firm's name is considered 
proprietary.

FOR FURTHER INFORMATION CONTACT: Patricia Tran or Robert James at (202) 
482-1121, or (202) 482-0649, respectively, Antidumping and 
Countervailing Duty Enforcement Group III, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
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Street and Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    On July 27, 1999, the Department published in the Federal Register 
a notice of amended final determination of sales at less than fair 
value and antidumping duty order on stainless steel sheet and strip in 
coils from Germany. See Notice of Amended Final Determination of Sales 
at Less Than Fair Value and Antidumping Duty Order; Stainless Steel 
Sheet and Strip in Coils From Germany, 64 FR 40557 (July 27, 1999) 
(Amended Final Determination).
    Following publication of the amended final determination, KTN and 
Krupp Hoesch Steel Products, Inc. (KHSP) filed a lawsuit with the Court 
challenging certain aspects of the Department's findings in the 
antidumping investigation of stainless steel sheet and strip in coils 
from Germany.
    On July 31, 2000, the Court remanded eight issues from the Amended 
Final Determination, ordering the Department i) to explain why its 
choice of adverse facts available for the German resellers was 
``rationally related to KTN's sales and indicative of its customary 
selling practices,'' and why these facts available were not unduly 
harsh or punitive; ii) to explain which data fields in the U.S. 
Reseller's U.S. cost database were verified or verifiable; iii) to 
explain whether, and to what extent, errors in the U.S. Reseller's cost 
response tainted its attendant sales database; iv) to adduce 
substantial evidence that KTN had the ability to check the U.S. 
Reseller's database for errors prior to verification; v) to point to 
additional evidence, aside from computer programming errors, for 
assigning adverse facts available to the U.S. Reseller; vi) to explain 
why the Department's allocation methodology for the U.S. Reseller's 
sales of unknown origin was not unduly harsh or punitive; vii) to 
explain its refusal to deduct movement and selling expenses from the 
U.S. Reseller's gross unit price prior to applying adverse facts 
available; and viii) to exclude the U.S. Reseller's sales of non-
subject merchandise (i.e., cut-to-length sheet and strip) from the 
margin calculation. See Krupp Thyssen Nirosta GmbH and Krupp Hoesch 
Steel Products, Inc. v. United States, Court No. 99-08-0050, Slip Op. 
00-89 (CIT 2000) (Krupp I).
    Furthermore, with respect to points (ii) and (iii), the Court 
ordered the Department to use the U.S. Reseller's data if it found the 
information was verified or verifiable, ``subject to filling any gaps, 
as noted in the [C]ourt's opinion, with facts available.'' Krupp I at 
19. The Court further held, with respect to points (iv) and (v), that 
if the Department could not produce evidence of KTN's ability to check 
its data prior to verification, and evidence of errors

[[Page 57420]]

aside from computer programming errors, the Department could not use an 
adverse inference in selecting among the facts otherwise available. Id.
    On October 30, 2000 the Department issued its Results of 
Redetermination Pursuant to Court Remand Stainless Steel Sheet and 
Strip in Coils from Germany (Remand Determination I) addressing the 
concerns of the Court stated above.
    On July 9, 2001 the Court issued a second order remanding the 
Department's Remand Determination I. In Krupp Thyssen Nirosta GmbH and 
Krupp Hoesch Steel Products, Inc. v. United States, Court No. 99-08-
0050, Slip Op. 01-84 (CIT 2001) (Krupp II), the Court sustained (i) the 
use of adverse facts for German Resellers' downstream sales; (ii) the 
Department's rejection of U.S. Reseller's entire database; and (iii) 
the adverse facts the Department selected with respect to the 
allocation of sales of unidentified origin. The Court directed the 
Department (i) to use neutral facts available for the purpose of 
calculating U.S. Reseller's margin rate and any other calculation 
predicated on U.S. Reseller's cost and sales data; and, (ii) to 
calculate facts available for the reseller in a way that enables the 
facts available rate and the sales prices to which it is applied to be 
adjusted to be net of movement and selling expenses.
    On September 7, 2001 the Department issued its Draft Results of 
Redetermination to the plaintiffs and defendant-intervenors to comment. 
In the Draft Results of Redetermination, the Department, for purposes 
of the remand, used neutral facts available to calculate U.S. 
Reseller's margin rate and any other calculation predicated on U.S. 
Reseller's cost and sales data, and calculated facts available for the 
reseller in a way that enabled the facts available rate and the sales 
prices to which it is applied to be adjusted for movement and selling 
expenses. Neither party submitted comments on the Department's Draft 
Results of Redetermination. Pursuant to Krupp II the Department filed 
its redetermination on remand on September 14, 2001. The Department's 
Results of Redetermination were identical to the Draft Results of 
Redetermination.
    On October 19, 2001, the Court affirmed the Department's remand 
determination. See Krupp Thyssen Nirosta GmbH and Krupp Hoesch Steel 
Products, Inc. v. United States, Court No. 99-08-0050, Slip Op. 01-123 
(CIT October 19, 2001). As a result of the remand determination, the 
final dumping margins are as follows:

------------------------------------------------------------------------
                                                              Weighted-
                                                               Average
                   Exporter/manufacturer                        Margin
                                                              (percent)
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Krupp Thyssen Nirosta GmbH.................................        13.48
All Others.................................................        13.48
------------------------------------------------------------------------

Suspension of Liquidation

    The U.S. Court of Appeals for the Federal Circuit in Timken held 
that the Department must publish notice of a decision of the Court or 
the Federal Circuit which is not in harmony with the Department's 
determination. Publication of this notice fulfills this obligation. The 
Federal Circuit also held that the Department must suspend liquidation 
of the subject merchandise until there is a ``final and conclusive'' 
decision on the case. Therefore, pursuant to Timken, the Department 
must continue to suspend liquidation of the subject merchandise pending 
the expiration of the period to appeal the Court's October 19, 2001 
decision, or if that decision is appealed, pending a final decision by 
the Federal Circuit. However, because entries of the subject 
merchandise continue to be suspended pursuant to the antidumping duty 
order in effect (the Department is conducting administrative reviews 
for the 1999-2000 and 2000-2001 periods), the Department need not send 
additional instructions to the Customs Service to suspend liquidation. 
Further, consistent with Timken, the Department will order the Customs 
Service to change the relevant cash deposit rates in the event that the 
Court's ruling is not appealed or the Federal Circuit issues a final 
decision affirming the Court's ruling.

    Dated: November 2, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 01-28642 Filed 11-14-01; 8:45 am]
BILLING CODE 3510-DS-P